gno.law

People v. Moore CA4/1

California Court of Appeal · D067559 · 2016-04-06 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCS269906
Trial judge
Dwayne K. Moring
Outcome
reversed in part — Affirmed in part; reversed in part.
Area
criminal
Panel
Cynthia Aaron (author), Richard D. Huffman, Sr., Judith L. Haller

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:53Z · confidence high

The trial court convicted Kevin Moore of gross vehicular manslaughter while intoxicated and driving under the influence of drugs causing injury, sentencing him to 14 years. The Court of Appeal reversed the conviction on the lesser included offense of driving under the influence of drugs causing injury and struck the associated enhancement, while affirming the remaining judgment.

Ruling reviewedStandardThe courtThe model
Conviction on Count 2 for driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e))
“Moore's conviction on count 2 for driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) must be reversed because it is a lesser included offense of count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)).”
de novoerroragree with court
The appellate court correctly applied the de novo standard of review to the legal question of whether one offense is a necessarily included offense of another. It correctly relied on People v. Miranda and People v. Binkerd to determine that Vehicle Code section 23153 is a lesser included offense of Penal Code section 191.5, subdivision (a), particularly noting that the defendant was an adult and thus the exception for minors under Vehicle Code section 23140 did not apply. The reversal of the lesser included conviction is consistent with the rule against multiple convictions for necessarily included offenses.
Enhancement for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c)) attached to Count 2
“We must also strike the enhancement for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c)) attached to the reversed conviction.”
de novoerroragree with court
The appellate court correctly struck the enhancement because it was attached to the reversed conviction on Count 2. When a conviction is reversed, any enhancements predicated on that conviction must also be stricken to avoid an unauthorized sentence. The court cited People v. Miranda for this proposition, which is appropriate.
Court operations assessment (§ 1465.8, subd. (a)(1)) and court facility assessment (Gov. Code, § 70373)
“Accordingly, we order the assessments modified as requested by Moore.”
de novoerroragree with court
The appellate court correctly modified the assessments to reflect the reversal of Count 2. Although the argument was raised for the first time in the reply brief, the court properly exercised its discretion to consider it because a failure to modify the assessments would result in an unauthorized sentence. The court cited People v. Hamed for the proposition that improperly imposed assessments are unauthorized sentences that may be corrected on appeal.

Authorities

  • relied: People v. Ramirez (2009) 45 Cal.4th 980 — Whether an offense is a necessarily included offense of another is a legal question reviewed de novo.
  • relied: People v. Butler (2003) 31 Cal.4th 1119 — De novo standard of review applies to legal questions.
  • relied: People v. Miranda (1994) 21 Cal.App.4th 1464 — Vehicle Code section 23153 is a necessarily included offense of former Penal Code section 191.5, subdivision (a).
  • relied: People v. Binkerd (2007) 155 Cal.App.4th 1143 — Vehicle Code section 23153 is a necessarily included offense of former Penal Code section 192, subdivision (c), even when the greater offense can be predicated on a violation of Vehicle Code section 23140, provided the defendant is not a minor.
  • relied: People v. Moran (1970) 1 Cal.3d 755 — Where a defendant is convicted of both a greater and lesser offense, the conviction of the lesser offense must be reversed.
  • relied: Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847 — Courts ordinarily will not consider arguments raised for the first time in a reply brief.
  • relied: People v. Hamed (2013) 221 Cal.App.4th 928 — Improperly imposed assessments are unauthorized sentences that may be corrected on appeal.

The appellate opinion: sound — The opinion is sound because it correctly applies the de novo standard of review to the legal question of lesser included offenses and relies on binding precedent (Miranda and Binkerd) to support its conclusion. It also appropriately addresses the procedural issue of considering an argument raised for the first time in the reply brief when necessary to avoid an unauthorized sentence.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

A jury convicted Kevin Moore of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) with an elder great-bodily-injury enhancement, and the trial court imposed 14 years on count 1, stayed count 2 under section 654, and imposed per-count court assessments. On appeal the People conceded that count 2 was a lesser included offense of count 1, and the Court of Appeal reversed the count 2 conviction, struck its enhancement, reduced the court operations and court facility assessments to a single count each, and otherwise affirmed.

Ruling reviewedStandardThe courtThe model
Entry of judgment of conviction on count 2 (Veh. Code, § 23153, subd. (e)) in addition to count 1 (Pen. Code, § 191.5, subd. (a)), despite the bar on conviction of both a greater and a necessarily included offense
“Under Miranda and Binkerd, driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) is a lesser included offense of gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)).”
de novoerror (law misapplied)unsure
The court correctly identified the issue as a legal question reviewed de novo (Ramirez) and followed Miranda and Binkerd, which the People conceded control. The result is consistent with existing Court of Appeal authority, but the court expressly declined to decide whether those cases were correctly decided and itself flagged that section 191.5 can now be violated via Veh. Code § 23140 without violating § 23153. Under the pure statutory-elements test (Ramirez; People v. Reed), a § 191.5(a) violation predicated on § 23152 or on an alcohol-based § 23153 subdivision does not necessarily entail a drug-based § 23153(e) violation, and Binkerd's reliance on the defendant's age looks like a fact-specific rather than elements-based analysis. Because the court relied on the concession and did not resolve this tension, I cannot say the outcome is clearly right or clearly wrong.
Imposition of the section 12022.7, subdivision (c) great-bodily-injury-on-an-elder enhancement attached to count 2
“We must also strike the enhancement for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c)) attached to the reversed conviction.”
de novoerroragree with court
An enhancement cannot survive the reversal of the substantive count to which it is attached; striking it follows directly from the reversal of count 2, and Miranda did the same. Given the reversal of count 2, this consequence is correct.
Imposition of an $80 court operations assessment (§ 1465.8, subd. (a)(1)) and a $60 court facility assessment (Gov. Code, § 70373) calculated on two counts
“However, in light of our reversal on count 2, a failure to modify the assessments would result in an unauthorized sentence.”
de novoerroragree with court
The assessments are mandatory per-count charges; once count 2 is reversed, retaining the two-count amounts would be an unauthorized sentence correctable on appeal even though the argument was first raised in the reply brief (Hamed). The court's reasoning and authority support the modification.

Authorities

  • relied: People v. Ramirez (2009) 45 Cal.4th 980 — Whether an offense is a necessarily included offense is a legal question; multiple convictions for necessarily included offenses are barred, determined by whether all statutory elements of the lesser are included within the greater.
  • relied: People v. Butler (2003) 31 Cal.4th 1119 — Pure questions of law are reviewed de novo.
  • relied: People v. Miranda (1994) 21 Cal.App.4th 1464 — Vehicle Code section 23153 is a necessarily included offense of former Penal Code section 191.5, subdivision (a); the enhancement attached to the reversed lesser conviction must be stricken.
  • relied: People v. Binkerd (2007) 155 Cal.App.4th 1143 — Vehicle Code section 23153 is a necessarily included offense of former Penal Code section 192, subdivision (c), notwithstanding that the manslaughter statute may also be predicated on Vehicle Code section 23140.
  • relied: People v. Moran (1970) 1 Cal.3d 755 — Where a defendant is convicted of both a greater and a lesser included offense, the conviction of the lesser offense must be reversed.
  • relied: People v. Hamed (2013) 221 Cal.App.4th 928 — Improperly imposed assessments are unauthorized sentences that may be corrected on appeal.
  • relied: Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847 — Arguments raised for the first time in a reply brief ordinarily will not be considered.
  • missed: People v. Reed (2006) 38 Cal.4th 1224 — In deciding whether multiple convictions are permitted, courts apply only the statutory elements test and not the accusatory pleading test; the court did not address whether Binkerd's reliance on the defendant's age, or the alternative predicates in section 191.5, are consistent with a pure elements analysis.

The appellate opinion: sound with gaps — The court reached a result consistent with Miranda and Binkerd and with the People's concession, applied the correct standard of review, and properly handled the enhancement and assessments. It skipped the hard question it itself identified—whether, under the strict statutory-elements test of Ramirez and Reed, a drug-specific Veh. Code § 23153(e) violation is truly necessarily included in § 191.5(a), which may be predicated on §§ 23140, 23152, or other § 23153 subdivisions—by assuming the prior cases were correctly decided.

How this analysis was made · dispute it

Opinion

Filed 4/6/16 P. v. Moore CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067559

Plaintiff and Respondent, v. (Super. Ct. No. SCS269906)

KEVIN MOORE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed in part; reversed in part.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent. I.

INTRODUCTION

A jury found Kevin Moore guilty of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subds. (a), (c)(1))1 (count 1) and driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) (count 2). With respect to count 2, the jury found true the special allegation that Moore personally inflicted great bodily injury upon the victim, a person 70 years of age or older (§ 12022.7, subd. (c)). In a bifurcated trial, the court found true that Moore had suffered four prison priors (§ 667.5, subd. (b)). The court sentenced Moore to a total aggregate term of 14 years on count 1, consisting of the upper term of 10 years on the substantive offense and a total of 4 years for the 4 prison priors. The court stayed execution of the sentence on count 2 pursuant to section 654.

On appeal, Moore claims that his conviction on count 2 for driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) should be reversed because it is a lesser included offense of count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)), and a defendant may not be convicted of both a greater and lesser included offense. The People concede the error and request that we reverse the conviction on count 2 and strike the enhancement attached to that count. We accept the People's concession and reverse the conviction on count 2 for 1 Unless otherwise specified, all subsequent statutory references are to the Penal Code. 2 driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e))

and strike the enhancement (§ 12022.7, subd. (c)) attached to that count.

II.

FACTUAL BACKGROUND

While under the influence of cocaine, Moore drove his vehicle onto a sidewalk.

Moore's vehicle struck and killed 89-year-old victim Tomas Macaraeg Mondares.2

III.

DISCUSSION

Moore's conviction on count 2 must be reversed because it is a lesser included offense to count 1 Moore claims that his conviction on count 2 for driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) should be reversed because it is a lesser included offense of count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)). Moore's claim raises a pure "legal question." (People v. Ramirez (2009) 45 Cal.4th 980, 983, fn. 3 (Ramirez) [whether an offense is a necessarily included offense of another is a "legal question"].) Accordingly, we apply a de novo standard of review. (See, e.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)

2 We provide an abbreviated summary of the facts of the underlying offenses because they are not relevant to Moore's claim on appeal. 3 A. Governing law "In California, a single act or course of conduct can lead to convictions 'of any number of the offenses charged.' [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses."

(Ramirez, supra, 45 Cal.4th at p. 984.) In applying the bar against multiple convictions for necessarily included offenses, a court must "inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense." (Id. at p. 985.)

Section 191.5 provides in relevant part:

"(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

"[¶] . . . [¶]

"(c)(1) . . . [G]ross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years."

Vehicle Code section 23153, subdivision (e) provides:

"It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."

4 In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 (Miranda), the court concluded that Vehicle Code section 23153 is a necessarily included offense of former section 191.5, subdivision (a). At the time Miranda was decided, former section 191.5, subdivision (a) required that the People prove, among other elements, that the defendant violated either Vehicle Code section 23152 or Vehicle Code section 23153.3 The Miranda court rejected the People's argument that Vehicle Code section 23153 was not a necessarily included offense of former section 191.5, subdivision (a) because one could commit a violation of former section 191.5, subdivision (a) without necessarily violating Vehicle Code section 23153—such as, by violating Vehicle Code section 23152. Without specifically referring to Vehicle Code section 23152, the Miranda court rejected this argument, reasoning:

"One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred. The People do not suggest how a victim could be killed by a moving vehicle and not incur injury in the process. We cannot envision such a scenario, nor is one created by a hypertechnical reading of Penal Code section 191.5. Appellant's 3 The Miranda court quoted former section 191.5, subdivision (a) as prohibiting " 'the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.' " (Miranda, supra, 21 Cal.App.4th at p. 1468.) 5 conviction of violating Vehicle Code section 23153, subdivision (a) cannot stand."4 (Miranda, supra, 21 Cal.App.4th at p. 1468.)

The Legislature has since amended section 191.5 to provide that a violation of section 191.5, subdivision (a) may also be predicated on a violation of Vehicle Code section 23140, which prohibits minors from driving with a blood alcohol content of 0.05 percent or more. Thus, it now appears to be possible for a minor to violate section 191.5 without violating Vehicle Code section 23153 in those cases in which the violation of section 191.5, subdivision (a) is predicated upon a violation of Vehicle Code section 23140.

In People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd), the court relied on Miranda in concluding that Vehicle Code section 23153 is a necessarily included offense of former section 192, subdivision (c), which required that the defendant commit a "violation of Section[s] 23140, 23152, or 23153 of the Vehicle Code . . . ."

(Binkerd, supra, 155 Cal.App.4th at p. 1147, quoting former § 192, subd. (c).)5 The 4 Although not clearly stated in the opinion, the Miranda court may have intended to conclude that any defendant who violates former section 191.5, subdivision (a) and Vehicle Code section 23152, will also have violated Vehicle Code section 23153, in light of the requirement in section 191.5 that "the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (Miranda, supra, 21 Cal.App.4th at p. 1468.) 5 Former section 192, subdivision (c), which defined the crime of vehicular manslaughter while intoxicated without gross negligence, is now codified in section 191.5, subdivision (b). (Binkerd, supra, at p. 1146, fn. 1.) As noted in the text, section 191.5, subdivision (a) defines the crime of vehicular manslaughter while intoxicated with gross negligence, commonly referred to as gross vehicular manslaughter while intoxicated. 6 Binkerd court specifically rejected the People's argument that Vehicle Code section 23153 is not a necessarily included offense of section 192, subdivision (c)(3) because a violation of section 192 may be predicated upon the violation of Vehicle Code section 23140. (Binkerd, supra, at p. 1148.) The Binkerd court noted that the defendant in that case "was over the age of 21 at the time and could not be charged with violating Vehicle Code section 23140." (Id. at p. 1149.)6 B. Application Under Miranda and Binkerd, driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) is a lesser included offense of gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)). The People cite Miranda in their brief,7 and concede that a violation of Vehicle Code section 23153, subdivision (e) is a necessarily included offense of section 191.5, subdivision (a).

In light of this concession, we assume that Miranda and Binkerd were correctly decided, and that Vehicle Code section 23153, subdivision (e) is a necessarily included offense of section 191.5, subdivision (a). Accordingly, we conclude that Moore's conviction on count 2 for driving under the influence of drugs causing injury (Veh.

Code, § 23153, subd. (e)) must be reversed because it is a lesser included offense of count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)).

(See People v. Moran (1970) 1 Cal.3d 755, 763 [where defendant is convicted of a 6 In this case, the record indicates that Moore was 57 years old at the time of the offense. 7 Moore cited both Miranda and Binkerd in his opening brief. 7 greater and lesser offense, "the conviction of the lesser offense must be reversed"].)

We must also strike the enhancement for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c)) attached to the reversed conviction. (See Miranda, supra, 21 Cal.App.4th at pp. 1468-1469 [striking enhancement of reversed conviction].)8 8 In his reply brief, Moore notes that the trial court imposed a court operations assessment in the amount of $80, pursuant to section 1465.8, subdivision (a)(1), which authorizes the trial court to impose an assessment of $40 per count. Moore also notes that the court imposed a court facility assessment in the amount of $60, pursuant to Government Code section 70373, which authorizes the trial court to impose an assessment of $30 per count. Moore argues that a reversal on count 2 requires that we modify the court operations assessment (§ 1465.8, subd. (a)(1)) from $80 to $40, and the court facility assessment (Gov. Code, § 70373) from $60 to $30. Ordinarily, we will not consider arguments raised for the first time in reply. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.) However, in light of our reversal on count 2, a failure to modify the assessments would result in an unauthorized sentence. (See People v. Hamed (2013) 221 Cal.App.4th 928, 941 [improperly imposed assessments are unauthorized sentences that may be corrected on appeal].) Accordingly, we order the assessments modified as requested by Moore. 8 IV.

DISPOSITION

Moore's conviction on count 2 for driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) is reversed and the enhancement attached to count 2 for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c))

is stricken. The court operations assessment (§ 1465.8, subd. (a)(1)) is modified from $80 to $40, and the court facility assessment (Gov. Code, § 70373) is modified from $60 to $30. In all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

Cites, in this corpus